PEOPLE v. MILEY (2019)

ORDERED that the judgment of conviction is reversed, on the law, and the matter is remitted to the Criminal Court for a new trial.

Defendant was charged with endangering the welfare of a child (Penal Law § 260.10 [1]) and assault in the third degree (Penal Law § 120.00 [1]). At the close of evidence at a jury trial, the Criminal Court reduced the charge of assault in the third degree to attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]). Following the trial, defendant was convicted of endangering the welfare of a child and acquitted of attempted assault in the third degree.

Defendant's contention that the evidence was legally insufficient to establish her guilt of endangering the welfare of a child beyond a reasonable doubt is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]). In any event, viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish defendant's guilt, beyond a reasonable doubt.

Moreover, upon the exercise of our factual review power (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), while according great deference to the trier of fact's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Lane, 7 NY3d 888, 890 [2006]; People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]), we find that the verdict was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). Contrary to defendant's contention, the acquittal of attempted assault in the third degree was not necessarily “conclusive as to a necessary element” of endangering the welfare of a child (People v Tucker, 55 NY2d 1, 7 [1981]; see People v Moore, 51 Misc 3d 6, 12 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] ).

Nevertheless, defendant is correct that reversal is required in light of the erroneous admission into evidence, under the present sense impression exception to the hearsay rule, of a recording of a 911 call, as the call had been made about one hour after the incident, during which time the caller, among other things, filled out a report and related the incident to another party who suggested the caller make the 911 call (see People v Matyszewski, 47 AD3d 646, 646 [2008]; People v Ortiz, 33 AD3d 1044 [2006]). Contrary to the People's assertion, defendant's contention is preserved for appellate review (see CPL 470.05 [2]). Moreover, the error in admitting the recording, which also constituted improper bolstering (see People v Spencer, 96 AD3d 1552, 1553 [2012]), was not harmless, as this case turned entirely on credibility and the proof of defendant's guilt was far from overwhelming (see People v Allen, 13 AD3d 892 [2004]).

In light of our determination, we need not reach defendant's remaining contentions.

Accordingly, the judgment of conviction is reversed and the matter is remitted to the Criminal Court for a new trial.

SIEGAL, J.P., PESCE and ELLIOT, JJ., concur.